Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who was an associate justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. page 291–292.
After graduating from Yale Law School in 1941, Stewart served in World War II as a member of the United States Navy Reserve. After the war, he practiced law and served on the Cincinnati city council. In 1954, President Dwight D. Eisenhower appointed Stewart to a judgeship on the U.S. Court of Appeals for the Sixth Circuit. In 1958, Eisenhower nominated Stewart to succeed retiring Associate Justice Harold Hitz Burton, and Stewart won Senate confirmation afterwards. He was frequently in the minority during the Warren Court but emerged as a centrist swing vote on the Burger Court. Stewart retired in 1981 and was succeeded by the first female United States Supreme Court justice, Sandra Day O'Connor.
Stewart wrote the majority opinion in cases such as Jones v. Alfred H. Mayer Co., Katz v. United States, Chimel v. California, and Sierra Club v. Morton. He wrote dissenting opinions in cases such as Engel v. Vitale, In re Gault and Griswold v. Connecticut. He popularized the phrase "I know it when I see it" with a concurring opinion in Jacobellis v. Ohio, in which a theater owner had been fined for showing a supposedly obscene film. Upon announcing his retirement in 1981, when asked if he had any regrets from his time on the Court, he humorously lamented "In a way, I regret having once said about obscenity 'I know it when I see it' because I think that's gonna be on my tombstone."
Early life and education Stewart was born in Jackson, Michigan, on January 23, 1915, while his family was on vacation. He was the son of Harriett L. (Potter) and James Garfield Stewart. His father, a prominent Republican from Cincinnati, Ohio, served as mayor of Cincinnati for nine years and was later a justice of the Ohio Supreme Court.
Stewart earned an academic scholarship to attend the prestigious Hotchkiss School, where he graduated in 1933. He then went on to Yale University, where he was a member of Delta Kappa Epsilon (Phi chapter) and Skull and Bones, graduating Phi Beta Kappa in 1937 with a Bachelor of Arts degree cum laude. He served as chairman of the Yale Daily News. After studying international law at the University of Cambridge in England for a year, Stewart enrolled at Yale Law School where he graduated cum laude in 1941 with a Bachelor of Laws. While at Yale Law School, he was an editor of the Yale Law Journal and a member of Phi Delta Phi. Other members of that era included Gerald R. Ford, Peter H. Dominick, Walter Lord, William Scranton, R. Sargent Shriver, Cyrus R. Vance, and Byron R. White. The last would later become his colleague on the United States Supreme Court.
Stewart served in World War II as a member of the U.S. Naval Reserve aboard oil tankers from 1941 to 1945, attaining the rank of lieutenant junior grade. In 1943, he married Mary Ann Bertles in a ceremony at Bruton Episcopal Church in Williamsburg, Virginia (at which his brother Zephalso an initiate of Delta Kappa Epsilon and Skull and Bones, and eventually a professor of classics at Harvardwas the best man). They eventually had a daughter: Harriet (Virkstis), and two sons: Potter Jr. and David. He was in private practice with Dinsmore & Shohl in Cincinnati. During the early 1950s, he was elected to the Cincinnati City Council.
Sixth Circuit service
Stewart was nominated by President Dwight D. Eisenhower on April 6, 1954, to a seat on the United States Court of Appeals for the Sixth Circuit vacated by Judge Xenophon Hicks. He was confirmed by the United States Senate on April 23, 1954, and received his commission on April 27, 1954. His service terminated on October 13, 1958, due to his elevation to the Supreme Court of the United States.
Supreme Court
Stewart received a recess appointment from President Eisenhower as an associate justice on the U.S. Supreme Court on October 14, 1958, to succeed Harold Hitz Burton. He took the judicial oath of office that same day. He was formally nominated to the same position by President Eisenhower on January 17, 1959. Public hearings were held before the Senate Judiciary Committee on April 9 and 14, 1959, and the Committee voted on May 5, 1959, to forward his nomination with a favorable report. He was confirmed by the Senate in a 70–17 vote on May 5, 1959. All 17 votes against his confirmation came from Southern Democrats (both senators from Alabama, Arkansas, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Virginia, plus Spessard Holland of Florida). He served as Circuit Justice for the Sixth Circuit from October 14, 1958, to July 3, 1981, and as Circuit Justice for the Fifth Circuit from October 12, 1971, to January 6, 1972.
Stewart came to a Supreme Court controlled by two warring ideological camps and sat firmly in its center.Eisler, Kim Isaac (1993). A Justice for All: William J. Brennan, Jr., and the decisions that transformed America. page 159. New York: Simon & Schuster. John P. MacKenzie (December 8, 1985). "Potter Stewart is Dead at 70; Was on High Court 23 Years," NY Times ("The Court that Justice Stewart joined was closely divided on many of its most important questions, which often gave the junior member the deciding vote in his first few years.") A case early in his Supreme Court career showing his role as the swing vote during that time is Irvin v. Dowd.
Stewart was temperamentally inclined to moderate, pragmatic positions,Stern, Seth (2010) Justice Brennan, Liberal Champion, page 357, Houghton-Mifflin Harcourt. but was often in a dissenting posture during his time on the Warren Court. Stewart believed that the majority on the Warren Court had adopted readings of the First Amendment Establishment Clause (Engel v. Vitale (1962), Abington School District v. Schempp (1963)), the Fifth Amendment privilege against self-incrimination (Miranda v. Arizona (1966)), and the Fourteenth Amendment guarantee of Equal Protection with regard to voting rights (Reynolds v. Sims (1964)) that went beyond the framers' intention. In Engel, Stewart found no precedent to remove school sponsored prayer, and in Abington, Stewart refused to strike down the practice of school sponsored Bible reading in public schools; he was the only justice who took this position in both cases.Eisler, 182 Stewart dissented in Griswold v. Connecticut (1965) on the ground that, while the Connecticut statute barring the use of contraceptives seemed to him an "uncommonly silly law", he could not find a general "Right of Privacy" in the Fourteenth Amendment Due Process Clause.
Before the appointment of Warren Burger as Chief Justice, many speculated that President Richard Nixon would elevate Stewart to the post, some going so far as to call him the front-runner. Stewart, though flattered by the suggestion, did not want again to appear before and expose his family to the Senate confirmation process. He also did not relish the prospect of taking on the administrative responsibilities that were delegated to the Chief Justice. Accordingly, he met privately with the President to ask that his name be removed from consideration.
On the Burger Court, Stewart was seen as a centrist justice and was often influential. He joined the decision in Furman v. Georgia (1972), which invalidated all death penalty laws then in force, and he then joined in the Court's decision four years later, Gregg v. Georgia, which upheld the revised capital punishment legislation adopted in a majority of the states. Despite his earlier dissent in Griswold, Stewart changed his views on the right of privacy and was a key mover behind the Court's decision in Roe v. Wade (1973), which recognized the right to abortion under that right.Eisler, 232 Stewart opposed the Vietnam WarStrassfeld, Robert M. "The Vietnam War On Trial: The Court-Martial of Dr. Howard Levy," 1994 Wisc. L. Rev. 839, 840 ("On June 19, 1974, the United States Supreme Court upheld the court-martial conviction of Dr. Howard B. Levy, and with it, the constitutional validity of Uniform Code of Military Justice ("UCMJ") Articles 1332 and 134.3 The Court's announcement of its decision in Parker v. Levy prompted an unusual display of ire; Justice Potter Stewart angrily read his dissenting opinion from the bench." [citations omitted]) and on a number of occasions urged the Supreme Court to grant certiorari on cases challenging the constitutionality of the war.Lamb, Charles M., Stephen C. Halpern, eds. (1991). The Burger Court: Political and Judicial Profiles. Champaign-Urbana, IL: University of Illinois Press. Chapter 6 by Phillip J. Cooper, "Justice William O. Douglas: Conscience of the Court," p. 169 ("The cases presenting challenges to the validity of the war in Vietnam came in many forms, often in litigation concerning the draft, but most of them also contained a foundation assertion that the legitimacy of the war itself was in question. Recalling this period, Douglas asserted: 'I wrote numerous opinions stating why we should take these cases and decide them. Once or twice, Potter Stewart or Bill Brennan joined me. But there was never a fourth vote.'") , .
Stewart consistently voted against claims of criminal defendants in the area of federal habeas corpus and collateral review.Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 296. He was concerned about broad interpretations of the Due Process and the Equal Protection Clauses.Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 304.
He was the lone dissenter in the landmark juvenile law case In re Gault (1967). That case extended to minors the right to be informed of their rights and the right to an attorney, which had been granted to adults in Miranda v. Arizona (1966) and Gideon v. Wainwright (1963), respectively.
In the obscenity case of Jacobellis v. Ohio (1964), Stewart wrote in his short concurrence that "hard-core pornography" was hard to define, but "I know it when I see it, and the motion picture involved in this case is not that." Justice Stewart went on to defend the movie in question (Louis Malle's The Lovers) against further censorship. One commentator opined, "This observation summarizes Stewart's judicial philosophy: particularistic, intuitive, and pragmatic."
Justice Stewart commented about his second thoughts about that quotation in 1981. "In a way I regret having said what I said about obscenity—that's going to be on my tombstone. When I remember all of the other solid words I've written," he said, "I regret a little bit that if I'll be remembered at all I'll be remembered for that particular phrase."
Fourth Amendment Before 1967, Fourth Amendment protections were mostly limited to notions of property: possessory geographical locations such as apartments or physical objects.Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 292.